THIS AGREEMENT is made this …………. day of …………, 2013 by and between ……………………….. ( No: ……………..), a company registered under the Registration of Businesses in Malaysia having its principal place of business at …………………………….. (hereinafter called “……………") of the one part and …………………. (…………….), a limited company duly registered under the Companies Act in Malaysia and its principal place of business at ……………………………………. (hereinafter called “………………..”) of the other part.
NOW, THEREFORE, in consideration of the promises hereinafter made by the parties hereto, it is agreed as follows:
1.0 Parties’ Agreement
1.1 XXX and YYY agree to enter into this Agreement for the purpose of collaborating with each other to promote, market, distribute and or procure any contract for sale and installation of LED (Light Emitting Diode) lighting system developed and made from the Republic of Korea including its related lighting equipment, fixtures and accessories (hereinafter referred to as “Korean LED products”) and also other lighting systems with their related lighting equipment, fixtures and accessories, conventional or otherwise (hereinafter referred to as “other equipment”), with any individual, body corporate, establishment, agency, government and or local authority in Malaysia, but upon consideration flowing from each other and subject to the terms and conditions covenants and representations as hereinafter set forth.
1.2 In the event that that a contract is secured, XXX and YYY agree to form an appropriate team comprising employees of both parties, to perform such contract up to successful completion of the project.
1.3 XXX and YYY further agree to deliberate and agree on each party’s costs and expenses to be incurred, profit and loss to be distributed between the parties hereto.
1.4 This Agreement shall be deemed as the principal agreement and parties hereto agree that it is impractical to create agreement for each and every contract so secured. As such, any contract so secured shall be incorporated under this Agreement as Annexure and be treated and inserted as forming part of this Agreement.
2.0 Consideration
2.1 Upon execution of this Agreement, XXX agrees, at its own costs and expenses, to use its best efforts in the following:
2.1.1 to promote, market, distribute and or procure any contract for sale and installation and or maintenance of the Korean LED products and other equipment.
2.1.2 to provide adequate, trained technical staff for the purpose aforesaid.
2.2 YYY shall, upon request, assist XXX on all advertising, sales promotion; technical representation, technical assistance including providing XXX with necessary documentation, technical information and literature in connection with the Korean LED products and other equipment.
3.0 Representations and Warranties
3.1 YYY represents and warrants to XXX as of the date hereof (which representations and warranties shall survive the execution, delivery and completion of this Agreement) as set forth below:
3.1.1 Company’s Warranty. It possesses all rights, licenses and authorizations in connection with the Korean LED products and other equipment and has full power and authority to enter into this Agreement and to incur the obligations as hereby contemplated, and to carry out the provisions of this Agreement.
3.1.2 Equipment Warranty. It warrants that XXX shall acquire the Korean LED products and other equipment supplied hereunder free from defects in material or workmanship under normal use and service and of merchantability and fitness for a particular purpose for a period of one (1) year from the date of its operation. All repairs are covered by this warranty and must be done by YYY including all charges for labor and materials. However, the company is alleviated of its warranty if it is determined that either no fault exists in YYY, or the damage to be repaired was caused by negligence of customers, its agents or employees.
3.1.3 Misuse of Equipment. Any tampering, misuse or negligence in handling or use of the Korean LED products and other equipment renders the warranty void. Further, the warranty is void if, at any time, XXX attempts to make any internal changes to any of the components of the Korean LED products and other equipment; if at any time the power supplied to any part of the Korean LED products and other equipment exceeds the rated tolerance; if any external device attached by XXX creates conditions exceeding the tolerance of the Korean LED products and other equipment; or if any time the serial number plate is removed or defaced.
3.1.4 Spares Availability. YYY shall make spares for purchase by XXX. Such spares will be available to XXX at prices, terms and conditions in effect at the time such spares are purchased. No provision, in this paragraph or in any other part of this Agreement, shall require responsibility to stock spares.
4.0 Confidentiality
4.1 In connection with the business relationship postulated by this Agreement, each party may receive or have access to commercially valuable technical and non-technical confidential or proprietary information of the other party, including information in whatever form, relating to the business of such party that is not generally known or available to others, including source code and documentation for trade secrets, know how, customer lists, pricing strategies, marketing and business plans, information concerning a party’s vendors, and such party’s contemplated plans, strategies and prospects (hereinafter referred to as "Confidential Information").
4.2 Each party hereby acknowledges and agrees that any Confidential Information received or obtained from the other party will be the sole and exclusive property of the other party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement or as may be required by law.
4.3 If disclosure is required by law, the party required to disclose Confidential Information shall reasonably cooperate with the other party (at the other party’s request and expense) so that the other party may preserve the confidentiality of the Confidential Information to the extent reasonably possible.
5.0 Parties’ Relationship
5.1 The relationship of the parties established by this Agreement is that of independent contractors, and neither party is an employee, partner or joint venture party of the other.
5.2 It is hereby agreed that neither party shall be liable to be involved or implicated in the day-to-day running of its business, financial or otherwise of the other.
6.0 Period
6.1 Unless earlier termination by the parties hereto, this Agreement shall continue to subsist for a period of three (3) years from the date of this Agreement and subject to a further two (2) years renewal.
7.0 Breach of Agreement
7.1 Failure by either party to perform any of his/its obligations under this Agreement shall be deemed a breach of this Agreement and the party claiming such breach shall forthwith be entitled to exercise any or all of the rights and remedies as may be available at law or in equity.
7.2 All obligations arise out of any contract and or committed during the term of this Agreement shall survive and remain operative and in full force and effect regardless of earlier termination of this Agreement or expiration of the term of this Agreement.
7.3 The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party´s right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect.
8.0 Entire Agreement
8.1 This Agreement may not be changed or modified, or any provision waived, except by an agreement in writing, signed by the party against whom enforcement of the change, modification or waiver is sought.
8.2 Neither party shall have the right to assign this Agreement and/or to assign, license or otherwise transfer any or all of its rights, powers, privileges and obligations hereunder to any third party without the written consent of the other party.
9.0 Jurisdiction and Governing Law
9.1 The parties hereto agree that this Agreement shall be governed by, and interpreted and construed in accordance with, the internal laws enforceable in Malaysia, and any decision of the court shall be accepted and deemed as final.
10.0 Notice
10.1 Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective:
10.1.1 upon delivery when delivered in person;
10.1.2 upon transmission when delivered by verified facsimile transmission; or
10.1.3 when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the respective parties as hereinabove mentioned.
11.0 Successors and Assigns
11.1 This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors-in-title and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
Signed by ….. ]
For and on behalf of XXX………………….. ]
(………………………..) ]
In the presence of: ]
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Signed by …… ]
For and on behalf of YYY ……………….. ]
(…………………….) ]
In the presence of: ]
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Witness: Name & NRIC
______________________________
ANNEXURE 1
______________________________
1.0 Contract Secured
1.1 A contract for installation of LED lighting system including equipment, fixtures, accessories, wiring and other related works at the ……………………
2.0 Contract Price
2.1 RM???????
3.0 Project Commencement
3.1
4.0 Expected Date Of Completion
4.1
5.0 Other Special Terms Imposed by zzzz
5.1
6.0 Agreement between XXX and YYY
6.1 Project costs and expenses will be deliberated and decided by the parties hereto.
6.2 Profit margins will be distributed equally by the parties hereto.
6.3 A team will be set up in such number to be decided comprising of employees from both parties for the performance dan completion of the project.
6.4 XXX agrees to expend for the initial cost and expenses for the purchase of the Korean LED products and other equipment for the due performance of the project to the maximum limit of Ringgit …………………. (………………) only.
6.5 The balance of the costs will be borne by YYY.
6.6 If it is deemed practicable and necessary, a project account will be opened with any bank in Malaysia comprising signatories from the parties hereto.
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